BREWSTER v. BLUE MNTN., 68 Mass. App. Ct. 582 (2007)

864 N.E.2d 518

No. 05-P-1044.Appeals Court of Massachusetts. Norfolk.September 20, 2006.
April 6, 2007.

Present: RAPOZA, C.J., LAURENCE, GRAINGER, JJ.

Contract, Performance and breach, Misrepresentation. Frauds, Statute of. Actionable Tort. Consumer Protection Act, Businessman’s claim, Unfair or deceptive act, Damages. Uniform Commercial Code, Sale of goods. Damages, Loss of profits, Mitigation, Tort. Evidence, Parol evidence.

In a civil action in which the plaintiff, a wallpaper distributor, alleged that the defendant, a wallpaper manufacturer, breached its agreement to supply the plaintiff with certain lines of wallpaper by consistently failing to fill orders in a timely manner, the evidence supported the existence of an enforceable oral agreement between the parties regarding the defendant’s reliably supplying the plaintiff with the wallpaper in question [594-598]; further, the Statute of Frauds did not bar enforcement of the agreement, where the defendant admitted in court that an agreement for the sale of goods was made, where subsequent documents between the parties sufficiently recognized the existence of the oral agreement, and where there had been continuous part performance of the oral agreement [598-600].

In a civil action in which the plaintiff, a wallpaper distributor, alleged that the defendant, a wallpaper manufacturer, breached its agreement to supply the plaintiff with certain lines of wallpaper by consistently failing to fill orders in a timely manner, the record contained sufficient evidence to allow the jury to find that the defendant had induced the plaintiff to enter the agreement by intentionally misrepresenting that the defendant had enough production capacity to insure the reliable supply that was so important to the plaintiff [600-604]; moreover, the finding of intentional misrepresentation was a sufficient foundation for the jury’s finding of a violation of G. L. c. 93A in a business context [604-608].

Evidence at the trial of a contract action failed to establish the elements necessary to support the plaintiff’s claim that the defendant had tortiously interfered with the plaintiff’s advantageous relationships with its customers. [608-609]

Although the defendant in a breach of contract action failed to demonstrate that the prevailing plaintiff’s expert witness improperly calculated lost profit damages based on the plaintiff’s gross profits [609-611], remand to the trial court on the issue of damages was required where the defendant effectively bore its burden of demonstrating that the plaintiff did not make

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reasonable efforts to mitigate the damages stemming from the breach [611-614], and where the plaintiff failed to demonstrate the foreseeability and causation of certain damages [614-616]; further, the plaintiff could not recover any lost profit damages arising from its unjustifiable anticipatory repudiation of a separate contract with the defendant [616-619].

CIVIL ACTION commenced in the Superior Court Department on December 22, 1999.

The case was tried before Elizabeth B. Donovan, J.

Mark C. Fleming (Michael R. Heyison, Pratik A. Shah, Francis J. DiMento with him) for the defendant.

William C. Nystrom (Colleen C. Cook Joel G. Beckman with him) for the plaintiff.

LAURENCE, J.

This appeal arises out of a wallpaper distributor’s complaint that a wallpaper manufacturer breached its agreement to supply the distributor with certain lines of wallpaper by consistently failing to fill orders in a timely manner, and additionally committed intentional misrepresentation and a G. L. c. 93A violation with respect to the agreement. The complaint of the plaintiff distributor, Brewster Wallcoverings Company (Brewster), a Massachusetts entity, against the defendant manufacturer, Blue Mountain Wallcoverings, Inc. (Blue Mountain), a Canadian company, also alleged breach of the implied covenant of good faith and fair dealing, promissory estoppel, fraudulent inducement, and interference with advantageous customer relations.

After an eight-day trial beginning on September 15, 2003, the case was submitted to the jury on special questions, in answer to which the jury found Blue Mountain liable on all counts, including a finding that the c. 93A violation had been committed “wilfully or knowingly,” and awarded Brewster a lump sum of $2,348,288 in compensatory damages.[1] After a posttrial hearing, the trial judge awarded Brewster double damages on the

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basis of the “wilful or knowing” finding and $624,614.53 in attorney’s fees under c. 93A, stating, “I adopt the decision of the jury on the 93A claim and find it is well supported by the evidence.”[2]

The principal question before us is whether Brewster presented sufficient evidence at trial to warrant the jury’s verdicts. We reverse the verdict on the count for tortious interference with advantageous customer relations as unsupported by the evidence and we vacate the damages verdict (including the judge’s order awarding double damages on the c. 93A count) because Brewster failed to present evidence of any efforts to mitigate its damages and also presented insufficient evidence to support two constituent elements of its claim for damages.

I. Factual background. A. Breach of contract.
We recite the most pertinent facts that the jury could have found based on the evidence viewed in the light most favorable to Brewster (with certain other material facts reserved for discussion of specific issues). Brewster is a wallpaper distributor that has operated as a family-run business since the 1890’s, with a principal office in Randolph.[3] Its geographic area of distribution encompasses the United States, with office and warehousing facilities in Massachusetts, Kentucky, and California. As is typical of a distributor in the wallpaper industry, Brewster purchased sample books of wallpaper patterns from manufacturers and placed those books in retail stores.[4] For more than twenty years, Brewster had a relationship with GenCorp, Inc. (GenCorp), the

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manufacturer of the “GenCorp” lines of wallcoverings, which included one of Brewster’s best-selling wallpaper brands, “Sanitas,” among others.[5] One of several GenCorp distributors, Brewster held the exclusive right to distribute the GenCorp lines in the mid-Atlantic region of the country, a particularly lucrative area.

On December 11, 1998, Blue Mountain acquired from GenCorp certain assets, including the rights and equipment to print the GenCorp lines, consisting of five brands of wallpaper: Sanitas, Essex, Fashon, Chapters, and Designs for Living. The asset purchase agreement required Blue Mountain to transfer GenCorp’s wallpaper inventory and printing presses from GenCorp’s plant in Mississippi to Blue Mountain’s warehouse in Toronto, Canada. On December 3, 1998, Blue Mountain’s president, Christopher Wood, met Brewster’s president, Kenneth Grandberg, for dinner to discuss the impending GenCorp transaction. Wood assured Grandberg that there would be a “seamless transition” of the manufacturing and distribution of the GenCorp lines from GenCorp to Blue Mountain.

On December 18, 1998, Wood, accompanied by Blue Mountain’s vice-president of sales and marketing, John Hooker, met with Grandberg and other Brewster representatives at Brewster’s headquarters in Randolph (sometimes referred to as December 18 meeting).[6] At that meeting, Wood orally agreed to continue to do “business as usual” with respect to GenCorp products, and to accept Brewster’s purchase orders and service the GenCorp lines in a timely manner through their discontinuation dates.[7] In return, Brewster promised to continue to promote and distribute the GenCorp lines to its retail customers by carrying adequate inventory of such lines as it had done historically, keeping GenCorp sample books on the shelves, and filling orders for GenCorp products.

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According to Brewster witnesses, Wood made several other promises to Brewster at the December 18 meeting. First, he stated that there would be no service interruption to Brewster caused by the transfer of the physical assets of the business from GenCorp’s headquarters in Mississippi to Blue Mountain’s plant in Toronto. Second, he told of his plan to keep two GenCorp printing presses running in Mississippi while the remaining presses were disassembled and shipped to Toronto.[8] In addition, Wood promised that the machinery would be transferred and production would begin in Toronto by March 1, 1999.[9] He further expressed his intention to move GenCorp’s existing inventory from Mississippi to Toronto and to use that inventory to fill purchase orders until Blue Mountain was capable of printing new product in Canada.

Although the oral agreement made at the December 18, 1998, meeting (sometimes referred to as December 18 agreement) was never manifested in a written contract, it was subsequently reflected in multiple writings between the parties. Within three business days of that agreement, Brewster began placing orders for GenCorp products by sending Blue Mountain written purchase orders. On December 23, 1998, Brewster faxed Blue Mountain a signed memorandum setting forth the procedures for filling its orders, which required Blue Mountain to confirm acceptance of an order by faxing back a corresponding reference number, and invited Blue Mountain to call if it had any questions regarding Brewster’s terms. Blue Mountain confirmed acceptance of those purchase orders without question or qualification — as it did with respect to every subsequent Brewster order until the relationship soured in December, 1999 — in the manner specified by Brewster, i.e., by assigning a reference

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number to each purchase order and faxing the reference number back to Brewster.

Brewster also regularly requested production dates from Blue Mountain, which Brewster deemed were “critical” so as to allow it to advise customers of expected delivery dates on orders and on back ordered items. Not until April, 1999, however, did Blue Mountain begin providing written production dates to Brewster, virtually none of which proved reliable. Finally, written correspondence between the parties regarding the GenCorp lines confirmed the business relationship. In particular, in October, 1999, Brewster and Blue Mountain exchanged letters confirming an extension of the expiration dates on certain wallpaper lines.

At trial, it was undisputed that Blue Mountain provided exceptionally poor and usually untimely service to all of its distributor customers[10] on the GenCorp lines from December, 1998, through December, 1999. Brewster offered testimony that, prior to Blue Mountain’s acquisition of the GenCorp lines, Brewster was able to fill customers orders the same day over ninety percent of the time.[11] Because of Blue Mountain’s almost consistently tardy service, Brewster reached a zero-percent “fill-rate” with one of its major national customers, Home Depot (i.e., Brewster was unable to fill a single GenCorp order because items were out of stock and placed on back order). By May, 1999, Brewster’s back orders on GenCorp products had reached “crisis” proportions, accumulating to an unprecedented high of 157,000 rolls.[12] Brewster personnel testified that its customer service line was inundated by calls from angry retailers,

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many of whom said they were cancelling or threatened to cancel their orders.[13]

At a meeting between the parties on May 18, 1999, Wood assured Brewster that Blue Mountain had resolved its problems and agreed to send a public relations letter to Brewster’s customers, accepting responsibility for poor service on the GenCorp lines and assuring them that its “problems . . . are now behind us.” Blue Mountain also committed to filling eighty percent of Brewster’s back orders in five weeks and promised to provide Brewster with accurate production dates.[14]
Nonetheless, six weeks after the May, 1999, meeting, Blue Mountain still owed Brewster 125,000 rolls of wallpaper on back order.[15] Over the course of the next several months, Blue Mountain attempted to fill outstanding back orders and maintain improved production levels. Somewhat mollified by these concerted efforts, Brewster sent a letter to Blue Mountain on August 19, 1999,[16] agreeing to forge ahead in early 2000 on the “Diane Richmond” line, a

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new collection of wallpapers to be manufactured by Blue Mountain and distributed exclusively by Brewster.[17]

Despite Blue Mountain’s efforts to improve production, Brewster ultimately became totally dissatisfied with service on the GenCorp lines. Grandberg testified that he had lost confidence in Blue Mountain as a manufacturer beginning at the end of October or early November. By December, 1999, Brewster had filed the underlying action against Blue Mountain[18] and had also terminated the August, 1999, agreement to launch the Diane Richmond line in February, 2000, because Blue Mountain had proven itself an unreliable business partner.[19] Brewster officers testified that well into the fall of 1999, Blue Mountain was still failing to provide accurate production dates for items on back order, as well as regularly and without valid explanation neglecting for unreasonable lengths of time to respond to Brewster’s telephone calls and letters voicing its concerns.[20]

B. Intentional misrepresentations. Brewster’s reiterated

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contention at trial was that Blue Mountain had knowingly made false representations to Brewster on December 18, 1998, in order to deceive Brewster into entering the contract and promoting the GenCorp lines to its customers.[21] A portion of Wood’s deposition was read to the jury, in which (Brewster argued) he had acknowledged that he knew as early as December, 1998, that it would take six months, until June 1, 1999, for Blue Mountain to begin full production in Canada on the GenCorp lines — even though he promised Brewster a March, 1999, production date at the December 18 meeting. In pertinent part, Wood was asked at his deposition:

Q. “When did Blue Mountain anticipate that it would be up and running in Canada, producing product on the presses purchased from GenCorp?”
A. “Approximately June, `99.”
Q. “So as of December of 1998, was it Blue Mountain’s estimate that it would be producing product on the GenCorp machinery in Canada, and filling orders by June 1?”
A. “For production, yes. June 1, yes. That was what was anticipated.”

In addition, Brewster presented testimony that at the December 18 meeting Blue Mountain promised to fill Brewster’s orders during the transition period from its existing wallpaper

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inventory.[22] Wood also stated at that meeting that Blue Mountain’s warehouse in Canada was ready to accept GenCorp’s inventory from Mississippi and that Blue Mountain would transfer all inventory to its Toronto warehouse by March 1, 1999. GenCorp’s warehouse manager, Michael Kelly, testified, however, at a deposition read at trial, that the inventory was in fact not completely transferred from Mississippi until June, 1999, because Blue Mountain “probably” did not have an available warehouse. Kelly further stated that GenCorp repeatedly had to “beg” Blue Mountain (which hired only three men to perform all the work) to remove its large inventory from GenCorp’s Mississippi warehouse.[23]

To bolster its claims for intentional misrepresentation and violation of c. 93A, Brewster also presented evidence of Blue Mountain’s asserted malicious intention to harm Brewster’s business.[24] In December, 1998, Blue Mountain was negotiating a merger with another Canadian manufacturer, International Wallcoverings, Inc. (International).[25] Wood admitted that one proposed condition of the merger was that International would terminate its existing relationship with Brewster as International’s distributor of the International product lines — a fact he did

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not mention to Brewster in December, 1998.[26] Brewster also presented evidence that Blue Mountain had no intention of renewing its distributorship agreement with Brewster once the GenCorp lines reached their discontinuation dates, and had designated other distributors to take over their distribution in the mid-Atlantic region.

C. Damages. John Kampner, Brewster’s vice-president of operations for twenty-one years, had worked in the wallpaper industry for thirty-nine years. He testified as an expert regarding Brewster’s damages attributable to its problems with Blue Mountain (although he disavowed any accounting expertise).[27] In calculating damages, Kampner argued that Blue Mountain’s conduct had harmed Brewster’s sales on both the GenCorp and the Diane Richmond lines and had caused collateral damage to other Brewster wallpaper lines. The primary basis for his conclusions was that Brewster’s sales of the GenCorp lines dropped from $4.7 million in 1997 and 1998 to $2.6 million in 1999, despite the fact that Brewster had acquired a lucrative new territory and several new major chain accounts. Additionally, customer cancellations of orders of GenCorp products rose from two percent in each of the prior years to twenty-five percent of total sales in 1999.[28]

Kampner further claimed that Brewster’s nonGenCorp lines were “tainted” by Blue Mountain’s poor GenCorp service, a phenomenon supposedly evidenced by the fact that 1999 sales substantially fell in stores that sold both GenCorp and nonGenCorp wallcoverings while increasing in stores that did not handle GenCorp products. Brewster’s customer service representatives testified that anonymous angry consumers berated unidentified retailers over the delays in filling GenCorp orders, leading some

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of those unnamed retailers, in consequence, to take, or threaten to take, Brewster’s sample books off their shelves.[29] Kampner estimated that Brewster’s lost profits as a result of Blue Mountain’s defective service on the GenCorp lines totaled $3.3 million.[30]

After Brewster rested, Blue Mountain moved for a directed verdict on the basis, among others, of the insufficiency of Brewster’s damages evidence, particularly Kampner’s failure to distinguish Brewster’s gross profits from its net profits in his damages calculation. (Indeed, as Blue Mountain argued, Kampner never mentioned the term “net profits” during his testimony, nor had he discussed the impact of overhead costs, such as warehouse expenses, or variable expenses, such as the cost of shipping). The judge denied Blue Mountain’s motion, and on Brewster’s motion, allowed Kampner to return to the stand (without objection from or cross-examination by Blue Mountain) to “clarify” his position that Brewster’s overhead costs were fixed and that Brewster’s gross profits indeed equaled its net profits.[31]

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At the conclusion of the trial (after Blue Mountain’s second directed verdict motion was denied), the case was submitted to the jury on special questions (to which Blue Mountain did not object). The jury found that (1) there was a contract for the sale of goods between the parties; (2) Blue Mountain breached that contract; (3) Blue Mountain also breached its covenant of good faith and fair dealing; (4) Blue Mountain made “false statements)” concerning a material “fact, knowing the fact to be false or with reckless disregard for the truth or falsity, with the intent that Brewster would reasonably rely on the fact in placing its orders”; (5) Brewster sustained “damages as a result of the intentional misrepresentation(s)”; (6) Blue Mountain knowingly interfered with Brewster’s customer relations, to Brewster’s detriment; (7) Blue Mountain “wilfully or knowing[ly]” committed an unfair and deceptive business act or practice, which was a substantial factor in the damages Brewster sustained, and which substantially occurred in Massachusetts[32] ; and (8) $2,348,288 was the sum to be awarded to adequately compensate Brewster “as a result of the legal wrong done by Blue Mountain.”[33]

II. Discussion. Blue Mountain’s argument on appeal is essentially an attack on the sufficiency of Brewster’s evidence regarding the existence of an enforceable contract, the alleged torts, and the G.L. c. 93A violation, as well as the amount of Brewster’s damages.[34] Blue Mountain bears a particularly heavy burden on its appeal. An appellate court will not set aside a jury

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verdict on any material fact found by a jury unless the jury verdict or fact has no rational basis in the evidence. A jury verdict will be upheld so long as “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” Tufankjian v. Rockland Trust Co., 57 Mass. App. Ct. 173, 178 n. 9 (2003), quoting from Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied, 493 U.S. 850 (1989). “If any such combination of circumstances could be found it is . . . immaterial how many other combinations could have been found which would have led to conclusions adverse to the plaintiff.” Kelly v Railway Express Agency, Inc., 315 Mass. 301, 302
(1943).

A. Breach of contract. With respect to the contract issue, the requisite proplaintiff combination of circumstances can be rationally found in the evidence, which supports the existence of an enforceable agreement between Brewster and Blue

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Mountain regarding the latter’s reliably supplying Brewster with GenCorp products. Except where the evidence is undisputed or consists solely of writings, whether a contract was intended to be formed, what were its terms, and whether it was supported by consideration are issues of fact for determination by the jury. See Bresky v. Rosenberg, 256 Mass. 66, 72, 74-75 (1926); Gleason v. Mann, 312 Mass. 420, 423 (1942); King v. Trustees of Boston Univ., 420 Mass. 52, 63-64 (1995).[35]

Blue Mountain argues that the parties did not form a binding contracts on December 18, 1998, for a number of reasons[36]
we deem preempted by the verdict on this record. Brewster offered sufficient evidence for the jury rationally to find that it had reached an enforceable oral agreement with Blue Mountain for reliable supply of GenCorp products at the December 18 meeting. Grandberg testified that Wood unqualifiedly promised to provide Brewster timely and “seamless” service on the GenCorp lines through their discontinuation dates. Wood admitted as much at trial, conceding that the parties had an agreement as of December 18, 1998. In exchange, Brewster promised to promote the GenCorp lines in the marketplace by keeping sample books of GenCorp wallpaper displayed on its customers’

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shelves. The contract was thus not illusory, because the jury could find that the parties mutually intended to be bound and had provided sufficient consideration to support their agreement.[37]

Blue Mountain’s argument that the contract was unenforceable because it lacked a quantity term is also unpersuasive. Although contracts generally must specify all material terms, including quantity, in a sale of goods contract, as is here involved, “[a] term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith,” and no amount need be specified. G. L. c. 106, § 2-306(1). The jury heard testimony that Brewster had long been the sole distributor of the GenCorp lines in the mid-Atlantic region of the United States, with a historical record of substantial sales of GenCorp products. The jury could, therefore, reasonably find that Blue Mountain had entered a contract to supply Brewster with substantial quantities of GenCorp products representing all of its good faith GenCorp needs in that area, pursuant to G. L. c. 106, § 2-306(1).[38] The lack of discussion or explicit agreement regarding a quantity term at the December 18, 1998, meeting was not so indefinite as to render the contract unenforceable.[39] See G. L. c. 106, § 2-306 comment 2. See also footnotes 37 and 38 supra.

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Blue Mountain’s additional arguments attacking the jury’s contract finding are similarly insubstantial. Although he acknowledged that he had “absolutely” agreed on December 18, 1998, to provide Brewster with GenCorp products “as usual” through their discontinuation dates, Wood nonetheless insisted that his assurances to Brewster had amounted to mere commercial puffery, reflecting only his aspirations for a smooth and successful transition of the GenCorp business. Further, even if a contract existed, Wood asserted that Blue Mountain could not be found to have committed a breach, because industry custom dictated that production dates were mere estimates and never guarantees, so that even Blue Mountain’s grossly delayed servicing of Brewster’s orders did not amount to contract breach.

The jury were free, however, to reject Blue Mountain’s evidence on those issues and to credit Brewster’s presentation to the contrary; namely, that as of December 18, 1998, the parties had intended to make a binding agreement for Blue Mountain’s timely service of the GenCorp lines, an agreement that Blue Mountain almost immediately and consistently thereafter breached. Brewster also offered undisputed evidence of the importance of timely service in the wallpaper industry, in that consumers generally demanded wallpaper the same day they placed their orders and would never wait many months for their orders to be filled; yet Blue Mountain had, in December, 1998, contracted to provide timely service to satisfy Brewster’s GenCorp needs knowing that it would take at least six months for full production of the GenCorp lines to begin, resulting in Brewster’s having to accumulate vast quantities of unfilled back orders by mid-1999 and to receive poor and untimely service from Blue Mountain (which Blue Mountain did not deny) throughout 1999.

B. Statute of Frauds. Blue Mountain argues that, even if there were sufficient evidence for the jury to find that a contract was formed on December 18, 1998, enforcement of that agreement is barred under the Statute of Frauds because it was an oral contract[40] for the sale of goods over $500 (see G. L. c. 106,

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§ 2-201), and that the trial judge erred in refusing to instruct the jury (as Blue Mountain requested) on the statute.[41]

We agree with Brewster that Blue Mountain’s Statute of Frauds defense is unavailing, for several reasons. First, an exemption from the statute exists when, as here, the party to be charged (Blue Mountain, through Wood’s own testimony) has admitted in court that a contract for the sale of goods was made. See G. L. c. 106, § 2-201 (3)(6); Providence Granite Co. v Joseph Rugo, Inc., 362 Mass. 888, 889 (1972). Second, Brewster’s December 23, 1998, order[42] referenced some of the terms agreed upon at the December 18 meeting (such as confirming Brewster’s orders; by facsimile using assigned reference numbers for purchase orders), and the parties exchanged written correspondence confirming the extension of the discontinuance dates on certain successful GenCorp lines, which extensions were published to Brewster’s customers in a semiannual bulletin. These documents sufficiently recognized the existence of the oral agreement. See G. L. c. 106, § 2-201 comment 1

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(“All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction”). Moreover, multiple writings of the sort here involved can be read together to determine whether the requirements of the statute are satisfied. See Bresky
v. Rosenberg, 256 Mass. at 69-70, 72; Waltham Truck Equip. Corp. v. Massachusetts Equip. Co., 7 Mass. App. Ct. 580, 583 (1979). Moreover, the statute does not apply when there has been, as here, part performance — indeed, continuous part performance — of an agreement, manifested by the numerous post-December 18, 1998, purchase orders, reference numbers, order confirmations, requests for production dates, provision of production dates, letters extending certain expiration dates, correspondence regarding performance, delivery (if usually belated) of large quantities of GenCorp products pursuant to the purchase orders, and substantial payments made therefor. See G. L. c. 106, § 2-201(3)(c). Cf. Winstanley v. Chapman, 325 Mass. 130, 133 (1949); Boyle v. Douglas Dynamics LLC, 292 F. Supp. 2d 198, 211 (D. Mass. 2003).[43]

C. Intentional misrepresentation. We view Brewster’s claim that Blue Mountain made intentional misrepresentations at the December 18 meeting to induce Brewster to enter the contract with respect to GenCorp as exceedingly thin, and were we reviewing the facts de novo, ultimately unpersuasive.[44]
The question before us on the issue, however, is whether “anywhere

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in the evidence . . . a reasonable inference could be drawn [by the jury] in favor of the plaintiff.” Tufankjian v Rockland Trust Co., 57 Mass. App. Ct. at 178 n. 9. Viewed in that light, the record contains sufficient evidence to allow the jury to find that Blue Mountain intentionally deceived Brewster at the December 18 meeting.[45]

Brewster argues that its evidence (essentially the testimony of its officers) demonstrated that Blue Mountain made three material misrepresentations at the December 18 meeting that it knew were false and would induce Brewster to make detrimental business decisions. First, Blue Mountain promised to be “up and running” and producing GenCorp product for Brewster at its Toronto-based plant by March 1, 1999, all the while knowing (as Wood testified at his deposition) that it would be June, 1999, at least three months later, before such productivity would be effected. Second, Blue Mountain assured Brewster that it had a warehouse ready to accept GenCorp’s inventory at the time of their agreement, that it would transfer inventory from GenCorp’s Mississippi plant to Toronto by March 1, 1999, and that Brewster would consequently have continuous access to inventory throughout the transition. Third, Blue Mountain promised to keep two press machines running at GenCorp’s plant in Mississippi during the transition period to fill Brewster’s orders. Brewster contends that its evidence established that these false promises were critical because its business depended on promptly filling

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customers’ orders, so that it in fact relied on them to its detriment.[46]

Brewster’s claims that Blue Mountain knowingly made false promises regarding its transfer and warehousing of GenCorp inventory[47] and its maintaining two functioning presses at GenCorp’s Mississippi factory during the transition period[48] do not amount to intentional misrepresentation[49] because there is simply no evidence in the record that Wood or anyone else at Blue

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Mountain knew those statements were false at the time of the December 18, 1998, meeting.

Wood’s promise to Brewster at the December 18, 1998, meeting to have full production up and running on the newly acquired GenCorp presses by March 1, 1999, stands on a different footing, however, because he had testified at his earlier deposition (which was read at trial) that June 1, 1999, had been the date he anticipated for such production at the time Blue Mountain acquired GenCorp.[50] That statement alone was sufficient to justify the jury’s finding of an intentional misrepresentation under the governing standards discussed above, notwithstanding Blue Mountain’s contention that the statement was merely a hopeful prediction and expectation because there were customarily no guarantees regarding production dates in the wallpaper business. The jury could rationally infer that, although Wood actually anticipated June 1, 1999, for full production, he promised Brewster at the December 18 meeting a much earlier date of full production in order to secure the deal through an assurance of productive capacity sufficient to insure the reliable supply that was so important to Brewster.[51] The jury could reasonably draw that inference in light of the uncontested

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testimony from both parties that timely supply was critical and that customers would not wait as long as three months for an order to be filled. As Blue Mountain’s Hooker testified, “people want [their wallpaper] when they buy it.”

D. General Laws c. 93A. The jury found, without particularization, that Blue Mountain had committed an unfair or deceptive business act or practice in its dealings with Brewster[52] and that such conduct was committed “wilfully or knowing[ly].” The trial judge apparently accepted as binding the jury’s findings without elaboration (except to state they were “well supported by the evidence”) and awarded Brewster (which had requested treble damages) double damages and attorney’s fees.[53] Blue Mountain contends that its actions, in what should be

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viewed as essentially a breach of oral contract case, lacked the qualities of manipulative self-interest, oppression, coercion, or other improper motivation that could be deemed to rise to the level of a c. 93A violation, particularly since the relevant transactions involved sophisticated business parties. See, e.g., Spence v. Boston Edison Co., 390 Mass. 604, 616 (1983) (“an act might be unfair if practiced upon a commercial innocent yet would be common practice between two people engaged in business”). Blue Mountain further argues that its conduct was not egregious enough to warrant a punitive award of multiple damages.

While Blue Mountain legally is correct in arguing that the mere breach of an oral contract, or mere negligence, without more, does not amount to a violation of c. 93A[54] (as the judge correctly instructed the jury), its assertion is beside the point. Under the jury’s findings — which, as noted above, have rational support in the evidence — something mor was here involved; namely, the finding of intentional misrepresentation (or common law fraud or deceit), which is sufficient foundation for a finding of a c. 93A violation in a business context. See, e.g., International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 848-849 (1983) Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 779-780 (1986); Heller Financial v. Insurance Co. of N. America, 410 Mass. 400, 408-409 (1991); Levings v. Forbes Wallace, Inc., 8 Mass. App. Ct. 498, 504 (1979) Lynn v. Nashawaty, 12 Mass. App. Ct. 310, 311
(1981); Bump v. Robbins, 24 Mass. App. Ct. 296, 311-312 (1987); Chamberlayne Sch. Chamberlayne Jr. College v. Banker, 30 Mass. App. Ct. 346, 347
(1991); VMark Software, Inc. v. EMC Corp., 37 Mass. App. Ct. 610, 620 (1994); Marshall v Stratus Pharmacies, Inc., 51 Mass. App. Ct. 667, 677
(2001); Ameripride Linen Apparel Servs., Inc. v Eat Well, Inc., 65 Mass. App. Ct. 63, 67 (2005).[55]

Additionally, the jury’s finding that Blue Mountain breached

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the covenant of good faith and fair dealing — a finding it does not challenge on appeal — would provide an independently sufficient basis for the finding that it violated c. 93A. See Massachusetts Employers Ins. Exchange v Propac-Mass, Inc., 420 Mass. 39, 43 (1995) Wasserman v. Agnastopoulos, 22 Mass. App. Ct. 672, 680 (1986).

Further, the issue of c. 93A violation was not restricted (as was the intentional misrepresentation count) to the events of December 18, 1998. The jury could also have permissibly relied on additional facts in the record that could be viewed as exacerbating the unfairness of the original misrepresentation, including (a) Blue Mountain’s having given Brewster false hope that the crisis-producing GenCorp supply problems had been resolved (in a public relations letter sent to Brewster’s customers in June, 1999, which stated that “[w]e have worked day and night to solve these problems and are pleased to announce they are now behind us,” even though a former Blue Mountain operations manager testified at his deposition, which was read at trial, that he did not recall Blue Mountain resolving any problems at that time but rather that the back order problem continued through to September, 1999, and the production dates Blue Mountain provided continued to be unreliable)[56] ; (b) Blue Mountain officers and personnel could rarely be reached and did not return Brewster’s frequent telephone calls and letters requesting resolution of the delay problems with any regularity, often took weeks to respond to Brewster’s inquiries, and sometimes stopped communicating at all, with no adequate or even plausible explanations for their lack of responsiveness; and (c) Blue Mountain’s failure to disclose to Brewster (as of

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December 18, 1998, and for several months thereafter) that a condition of Blue Mountain’s pending merger deal with International was that Brewster (who was a rival in the bidding for International) would be terminated as a distributor of certain nonGenCorp products, and that Blue Mountain had no intention of renewing Brewster’s GenCorp distributorship (and had already designated other distributors to take over its GenCorp distribution rights when the current lines were discontinued). On the entirety of the record evidence, the jury were therefore entitled to find, at the very least, that Blue Mountain had violated c. 93A by misleading Brewster into acting differently than it would otherwise have done, to its financial detriment.[57]

Whether that c. 93A violation merited the award of multiple damages, as Brewster insists and Blue Mountain challenges, is an interesting question as to which one might differ with the jury and the judge, on the rationale of VMark Software, Inc. v. EMC Corp., supra. We see that case as having remarkably similar facts, but it involved an outcome-determinative procedural distinction that undermines Blue Mountain’s reliance on it.[58] Unlike the VMark
case (which reviewed a judge’s findings at a bench trial and vacated the judge’s ultimate finding as to c. 93A for being inconsistent with the judge’s subsidiary findings, VMark Software, Inc. v. EMC Corp.,

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37 Mass. App. Ct. at 617), we have before us a jury finding as to Blue Mountain’s wilful and knowing c. 93A violation. That finding was based on the jury’s plausible and not irrational view of the evidence, which we cannot disturb under the applicable standard of review.[59] So long as that finding stands, an award of multiple damages ineluctably flows from the plain language of the statute.[60]

E. Tortious interference. The deferential standard of review of jury verdicts does not insulate the finding that Blue Mountain tortiously interfered with Brewster’s advantageous relationships with its customers, which we reverse because Brewster’s evidence failed to establish the elements necessary to support this claim.

“There are four elements required to establish interference with advantageous business relations: (1) the plaintiff has a business relationship for economic benefit with a third party, (2) the defendants knew of that relationship, (3) the defendants interfered with that relationship through improper motive or means, and (4) the plaintiff’s loss of the advantage resulted directly from the defendants’ conduct.”McNamee v. Jenkins, 52 Mass. App. Ct. 503, 508 (2001). The “improper motive or means” element requires proof of the defendant’s “actual malice,” i.e., a “spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Shea v. Emmanuel College, 425 Mass. 761, 764 (1997), quoting from Wright v Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992).

Brewster failed to make a case that would permit the jury to find either actual malice or “loss of the advantage.” Brewster offered no evidence establishing that any specific customers terminated their dealings with it because of Blue Mountain’s unreliable service on GenCorp lines, nor did it present any

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documentation indicating that any customers cancelled their orders on that account. Moreover, as discussed below, Brewster failed to mitigate its damages and maintained no records of whether customers who cancelled orders for GenCorp wallpaper because of undue delay selected substitute Brewster products, which was conceded to be a common occurrence.

Finally, Brewster’s evidence failed to demonstrate that Blue Mountain’s actions challenged in this litigation were entirely malevolent and unrelated to any legitimate corporate interest. Even assuming that the facts revealed Blue Mountain to be motivated by a desire for financial or competitive gain at Brewster’s expense, or by its officers’ personal dislike of Brewster and its personnel for whatever reason, no inference of the requisite spiteful and malignant ill will would be warranted. See United Truck Leasing Corp. v Geltman, 406 Mass. 811, 817 (1990); Boothby
v. Texon, Inc., 414 Mass. 468, 487-488 (1993) King v. Driscoll, 418 Mass. 576, 587 (1994).

F. Damages. 1. Net profits. That Blue Mountain’s conduct, as found by the jury, may have entitled Brewster to an award of some amount of damages did not relieve Brewster of the burden of establishing, with sufficient certainty, that such conduct in fact caused any claimed loss and the amount of that loss (in this case, its alleged lost profits on lost GenCorp and other wallpaper sales). Brewster could not leave the amount of its damages to assumption or conjecture but was obliged to introduce evidence proving its damages to a reasonable certainty. While the calculation of lost profits did not require mathematical precision, it could not be remote, speculative, or hypothetical. See Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 771 (1st Cir. 1996); Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 175-176 (1991); Augat, Inc. v. Aegis, Inc., 417 Mass. 484, 488 n. 4 (1994), quoting fro Lowrie v. Castle, 225 Mass. 37, 51-52 (1916); Alperin Shubow, Summary of Basic Law § 10.93 (3d ed. 1996). Evidence that enables the jury to arrive at a reasonably approximate estimate of damages is, however, sufficient Coady v. Wellfleet Marine Corp., 62 Mass. App. Ct. 237, 245 (2004).

Blue Mountain’s principal argument, relying on Jet Spray Cooler, Inc. v. Crampton, 377 Mass. 159, 175 n. 15 (1979), is that Brewster’s expert, Kampner, improperly calculated lost

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profits based on Brewster’s gross profits. The court in th Jet Spray Cooler case cited MacDonald v Page Co., 264 Mass. 199, 206 (1928), for “the only proper rule” regarding lost profit damages — that a plaintiff can only recover lost net profits resulting from a defendant’s tort or contract breach, not lost gross profits Jet Spray Cooler, Inc. v. Crampton, supra.[61] On this record, Blue Mountain’s theoretically correct position does not, however, win the day.

During his initial testimony, Kampner failed to mention net profits when explaining Brewster’s lost profit damages. After Brewster rested, Blue Mountain moved for a directed verdict on the ground that Kampner had failed to make the requisite reductions from gross profits to reach reasonable net profits in his calculations. The trial judge — without objection from Blue Mountain — allowed Brewster to recall Kampner to “clarify” his calculations.[62] Kampner then briefly testified to the effect that Brewster’s net profits for the years 1999 and 2000 in effect were the same as its gross profits because the company’s overhead expenses were fixed.[63] Blue Mountain’s counsel inexplicably declined to cross-examine Kampner on his

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“clarification” testimony, and thus failed to probe whether he had factored variable expenses (which he had never mentioned) into his calculation of Brewster’s lost profits.[64]

As skeptical as we may be that Kampner’s explanation made economic sense (given, for example, the fact that Brewster had over $1.25 million of “freight and delivery” expenses in 1999 and, as a matter of common sense, had to incur varying handling expenses in supplying its scattered retail customers depending on the volume of their orders and the distance materials had to be shipped), Kampner’s testimony that Brewster’s gross profits equaled its net profits after accounting for fixed overhead and “additional” expenses nonetheless provided a sufficiently (if minimally) rational basis for the jury’s finding that Brewster adequately proved its lost net profits to the requisite certainty.[65]

2. Mitigation. Blue Mountain is on firmer ground in pointing

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out Brewster’s failure to have discharged its obligation to mitigate damages caused by Blue Mountain’s breach of contract.[66] “[A] party cannot recover damages for loss that he could have avoided by [such] reasonable efforts . . . as are appropriate in the circumstances to avoid loss by making substitute arrangements or otherwise.” Restatement (Second) of Contracts § 350(1) comment b (1981). See Maynard
v. Royal Worcester Corset Co., 200 Mass. 1, 6 (1908) Delano Growers’ Coop. Winery v. Supreme Wine Co., 393 Mass. 666, 684 (1985); National Medical Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. 570, 581
(1984). See also Cooney Indus. Trucks, Inc. v Toyota Motor Sales, U.S.A., Inc., 168 F.3d 545, 546
n. 1 (1st Cir. 1999). Blue Mountain, as the party in breach, bore the burden of demonstrating that Brewster did not make reasonable efforts to mitigate the damages stemming from any breach of contract. American Mechanical Corp. v Union Mach. Co. of Lynn, Inc., 21 Mass. App. Ct. 97, 103 (1985). Blue Mountain effectively did so by showing the possibility (if not probability) of Brewster’s ability to engage in substitute transactions when GenCorp products were unavailable, thereby shifting the burden to prove mitigation back to Brewster.[67]

On cross-examination, Kampner was asked: “You have no

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way of knowing . . . if a customer cancels an order [for a GenCorp product because of supposed dissatisfaction with delay in obtaining the GenCorp product], whether they’ve picked another [nonGenCorp] Brewster product in place of that order?” To which he responded, “We wouldn’t know that,” but admitted that the chances were “fifty-fifty, toss of the dice,” whether a customer who cancelled an order for GenCorp wallpaper would select another brand of wallpaper.[68] Despite the “fifty-fifty” likelihood that such a customer would choose a substitute product, Brewster totally neglected to document whether its customer service representatives encouraged customers to substitute other products handled by Brewster for their cancelled GenCorp wallpaper or whether customers ever actually selected such other items. Furthermore, Brewster maintained no records revealing customers’ reasons for cancellation. Cf. Jet Spray Cooler, Inc. v Crampton, 377 Mass. at 180 (“the uncertainty in the assessment of damages arises not from any action of the defendants, but from the inaction of the plaintiffs”). On the basis of this evidentiary gap in the record (even without the others discussed below), the case must be remanded to the trial

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court on the issue of damages. Compare National Med. Care, Inc. v. Zigelbaum, 18 Mass. App. Ct. at 581-582.[69]

3. “Taint” damages. Not only must a plaintiff prove lost profits with a reasonable degree of certainty and without speculation, but it has also long been our law that, to be recoverable, such damages must have been reasonably foreseeable as a natural and probable result of a breach of contract at the time the contract was made. See Hadley v Baxendale, 156 Eng. Rep. 145, 151 (1854) Hawkins v. Jamrog, 277 Mass. 540, 543-544
(1931); Abrams v. Reynolds Metals Co., 340 Mass. 704, 708-709 (1960); Restatement (Second) of Contracts § 351(1), (3) (1981). Although Brewster provided sufficient evidence to establish that it suffered some measure of lost profits on the GenCorp lines for the years 1999 and 2000, it failed to demonstrate the foreseeability of its so-called “taint” damages, i.e., its claim that Blue Mountain’s breach of contract caused lost sales of nonGenCorp products in stores that carried both GenCorp and nonGenCorp wallcoverings. Nor did Brewster offer any evidence of causation, beyond conclusory assertion, that linked the breach to lost sales of nonGenCorp product.

Brewster argued at trial that its inability to fill customer orders of GenCorp product in a timely fashion “tainted” its sales on nonGenCorp lines (which Kampner testified amounted to nearly $2.8 million in lost sales. Its evidence of the supposed taint was an exhibit purporting to show that sales in stores that sold GenCorp and nonGenCorp wallpaper decreased by approximately $5 million in 1999, whereas sales in stores that did not sell GenCorp products increased by almost ten percent. Brewster’s

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only evidence that Blue Mountain’s breach was actually the cause of taint damages was Grandberg’s and Kampner’s conclusory testimony (based on unattributed hearsay reports from Brewster’s customer service department) that unidentified angry customers had taken Brewster’s sample books off their shelves. That evidence was not, however, probative of causation. Brewster neither called any customers who sold both GenCorp and nonGenCorp products and could ascribe lost sales to Blue Mountain’s breach, nor introduced a single original document reflecting such a consequential relationship.

Moreover, Brewster presented no evidence in support of its taint exhibit that established that the two categories of stores being compared operated under such similar market, financial, and competitive conditions that their sales performances could be meaningfully compared; and, as mentioned above, it failed to document customers’ reasons for cancelling their GenCorp orders or to record any information regarding substitute sales. All this made it impossible for Blue Mountain effectively to rebut the premise underlying the “taint” theory — assumed by Brewster’s witnesses but essentially unproven — that customers who cancelled their GenCorp orders would, in frustration or pique, have avoided all other products distributed by Brewster. Finally, Brewster introduced no evidence whatsoever establishing that such remote taint damages were, or could have been, reasonably foreseeable (much less foreseen) by Blue Mountain, or by anyone, at the time of the December 18, 1998, agreement.

Brewster’s “taint” theory of damages amounted to nothing more than a hypothesis that invited the jury to speculate that Blue Mountain’s conduct was the reason for the relative success of its products in different stores in different parts of the country, the sales performances of which could have been the product of numerous market factors entirely unrelated to Blue Mountain. Compare Augat, Inc. v. Aegis, Inc., 417 Mass. at 488, quoting from Jet Spray Cooler, Inc.
v. Crampton, 377 Mass. at 181 (“It was not sufficient simply to show [the plaintiffs’] projection of its sales and the historic return on total sales. . . . Many factors bear on the financial performance of a company. The plaintiffs had to show the portion of [their] losses . . . that was attributable to the defendant’s misconduct . . . `with sufficient

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certainty'”). Unlike Kampner’s dubious but legally sufficient explanation of Brewster’s lost GenCorp profits, Brewster’s case for taint damages as to nonGenCorp products was simply too attenuated and conjectural to support a jury finding awarding such damages and also necessitates a remand as to the issue of damages.[70]

4. Diane Richmond line damages. Disgruntled over Blue Mountain’s poor service on the GenCorp lines, in December, 1999, Brewster made an anticipatory repudiation of a separate contract it had entered with Blue Mountain several months earlier for the manufacture and distribution of a new Diane Richmond line of wallpaper beginning in February, 2000. At trial, Brewster claimed and was awarded lost profits for the sixteen-month delay that was allegedly attributable to Blue Mountain in Brewster’s independent launching of the Diane Richmond collection in July, 2001, as well as lost profits for the three-year shelf life of the line’s sample book thereafter.

Blue Mountain makes two arguments regarding the claimed damages on the Diane Richmond line: (1) it was unjustifiable for Brewster to repudiate a contract that was distinct from the GenCorp lines, especially since, prior to the anticipatory repudiation, Blue Mountain had assured Brewster that it was prepared to begin production on the Diane Richmond line well in advance of the scheduled February, 2000, date (a fact uncontested by Brewster)[71] ; and (2) even if the repudiation were justified, Brewster failed to prove any lost profits, as opposed to merely deferred profits (which represented fully mitigated damages, Brewster never claiming, much less proving, any interest or opportunity cost damages for the period between its contract repudiation and its commencement of Diane Richmond sales). We agree with both arguments.

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Kampner admitted at trial that Brewster cancelled the Diane Richmond line in December, 1999, two months prior to its anticipated introduction, solely because of Blue Mountain’s poor service on the GenCorp lines. He further acknowledged that Blue Mountain had made considerable efforts to prepare for the introduction of the Diane Richmond collection and that Brewster bore no dissatisfaction with that preparation.[72] Brewster’s asserted justification for its claimed Diane Richmond damages rested entirely on a letter it sent to Blue Mountain, dated August 19, 1999, which embodied the parties’ agreement as to the Diane Richmond line.[73] In pertinent part, the letter (signed by both parties) stated:

“We are still planning to launch the [Diane Richmond] collection in February 2000. . . . We expect Blue Mountain to service this line in a timely manner. This mean re-orders must be shipped in 6 to 8 weeks after the order is placed.
“If we find that the service levels are not adequately maintained, Brewster will remove the [Diane Richmond] cylinders and reimburse Blue Mountain $285.00 (U.S.) per cylinder plus Freight and cost of packing
handling.”

(Emphasis added). Based on this letter, however, the Diane Richmond agreement was unambiguously contingent upon Blue Mountain’s acceptable future performance on the Diane Richmond line, and not on GenCorp service. Brewster’s afterthought argument that its obligations thereunder were entirely contingent upon Blue Mountain’s timely delivery of the GenCorp lines also violates the rule against parol evidence, see, e.g. Dodge v. Bowen, 264 Mass. 208, 213 (1928) Sherman v. Koufman, 349 Mass. 606, 610
(1965), which makes inadmissible the claimed intentions of the parties when the relevant

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writing is unambiguous.[74] See Crafts v Hibbard, 4 Met. 438, 452 (1842); G. L. c. 106, § 2-610(6), (c); Restatement (Second) of Contracts §§ 243, 250 (1981). On this record, Brewster made an unjustifiable anticipatory repudiation of the Diane Richmond agreement, which discharged Blue Mountain’s obligations thereunder. Accordingly, Brewster should not have been awarded any lost profits on account of the Diane Richmond line, having ceased to have enforceable rights with respect to that agreement.

Even were Brewster correct in its assertion that it was justified in repudiating the Diane Richmond contract because of Blue Mountain’s bad performance as to GenCorp products, it failed to comply with G. L. c. 106, § 2-609, which requires a party to a contract for the sale of goods to make a written demand for adequate assurance of due performance when reasonable grounds arise for insecurity as to the other party’s performance. Although Brewster may have had reasonable suspicions concerning Blue Mountain’s continued reliability as a business partner, it failed to make the requisite written demand on Blue Mountain for assurances of performance with respect to the Diane Richmond agreement but opted instead to terminate the contract unilaterally, prematurely, and inexcusably.

Finally, even were Brewster entitled to some measure of damages with respect to the Diane Richmond line, its presentation suffered from the same defect as infected its lost profits calculations — a failure to mitigate. Kampner conceded that there were other companies capable of manufacturing the Diane Richmond line at the time Brewster repudiated the contract with Blue Mountain, but Brewster voluntarily chose to delay production for sixteen months until its own newly-acquired subsidiary, International, could produce the line.[75] Brewster presented no

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evidence whatsoever of any efforts at reasonable mitigation in these circumstances.

III. Disposition. The judgment on the jury’s verdict with respect to the count of tortious interference with Brewster’s business relationships is reversed. The judgment on the remaining verdicts is affirmed. The award of damages (as well as the trial judge’s order doubling those damages) are vacated, and this case is remanded to the Superior Court for proceedings with respect to damages consistent with this opinion.

So ordered.

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